1999 PLP 2305 (YLR)

3. I have heard the learned counsel for the appellants and the Assistant Advocate -General for the State and have also gone through the record of the case with their able assistance.

4. The perusal of the record reveals that the impugned judgment of the learned Additional Sessions Judge (Mr. Muhammad Iqbal Khan) cannot be sustained at all because he has totally failed to take notice/consider the following facts:‑‑‑ (i) Firstly, that the occurrence, accordingly to the F.I.R., lodged by the complainant, had taken place in the ' Baithak' of the appellant/ accused Rashid whereas, in his Court statement the complainant stated on oath that the occurrence took place in the "Baithak" of appellant Jumma Khan, who was also his friend and had invited him to his ' Baithak' for gup sup' (page No.23 of the Trial Court file). (ii) Secondly, that in the F.I.R., it is recorded that the victim/complainant was medically examined immediately after the registration of the case. On the other hand, in his statement recorded by the Trial Court, the complainant stated that he was medically examined after he had gone, with the Investigating Officer to show him the place of occurrence where, at his pointation, the Investigating Officer had prepared the site plan. (iii) That the complainant (P.W.4) stated that he was medically examined by the Doctor at 8‑30/9‑00 p.m. He stands contradicted by the Doctor (P.W.2) namely, Tariq Masood, who stated that the victim was examined by him at 11‑00 p.m. (iv) That there was no mention of the three ‑ appellants/accused Jumma Khan, Khalid and Sooba, accompanying the complainant to the Mosque where they took oath that they had not committed sodomy with him, in the F.I.R. However, this fact was disclosed by the complainant at the time of trial. (v) That it was mentioned in the F.I.R., that the complainant had disclosed about the incident to his father who had asked him to go to the Police Station to lodge the report. On the other hand, while in the witness‑box, the complainant (P.W.4) stated that he had never disclosed about the incident to his father and had in fact informed his mother in the first instance and that it was his mother who then informed his father, that his father then informed Haji Abdul Hameed who directed his father to get the‑F.I.R., registered and that in accordance with the instructions of Haji Abdul Hameed, he went to the police station with one Rafique, on his motorcycle, to get the case registered vide F.I.R. No.46, dated 21‑3‑1996. It may be mentioned here that Rafique was introduced for the first time, in this case, in the statement of the complainant. A perusal of the record even would show that there is nothing on the file to suggest, even remotely, that Rafique, who had allegedly taken the complainant to the police station for lodging the F. I. R., was ever mentioned/ examined by the Investigating Officer. (vi) That there is no mention in the F.I.R., that after having informed his mother, the complainant had gone to cut the gross. This fact has, however, been mentioned during the trial; (vii) That in the F.I.R., it was specifically mentioned that the clothes, which the complainant was wearing at the time when the sodomy was committed with him, were changed and were never produced before the police. But, in his statement, recorded in the Court as P.W.4, he stated that the said clothes, which were stained with mud, were shown to the police but the police did not take the same into its possession. (viii) That interestingly, in this case the statements of all the accused (five in number) were recorded under section 342, Cr.P.C., twice by the Trial Court. Once on 6‑4‑1998 by Additional Sessions Judge, Mr. Muhammad Yousaf Khan and again on 27‑10‑1998 by Additional Sessions Judge, Mr. Muhammad Iqbal Khan. In both the statements the age of the appellant/accused Khalid has been mentioned as 25/26 years. Contrary to this, the School leaving certificate and the card of arrest prepared by the police would show that the age of appellant/accused Khalid is less than 15 years.

5. I fail to understand as to why these points were never considered, discussed or discarded by the Additional Sessions Judge in the impugned order. Accordingly, the impugned order is held to be perverse and arbitrary arid the appellants are entitled to be extended with the benefit of doubt. The conviction/sentence awarded by the Additional Sessions Judge, vide: his order, dated 19‑12‑1998 is liable to be set aside.

6. Resultantly, this appeal is accepted, the conviction and sentence awarded by the Additional Sessions Judge, Mr. Muhammad Iqbal Khan by his order, dated 19‑12‑1998, is set aside and the appellants are acquitted. They shall be released forthwith if not required in any other case. N.H.Q./345/P Appeal allowed.